Subject: Appeal to dissociate Right of Reply from the Freedom of Information bill

Dear Rep. Antonino:

We are members of the Right to Know. Right Now! Coalition, a campaign network of organizations from various sectors that have long been advocating for the passage of a Freedom of Information Act.

We write to you in relation to your position to integrate the Right of Reply into the proposed Freedom of Information law, as embodied in your HB 4252.

With humility, and all due respect to your position, we appeal to you to dissociate the Right of Reply from the Freedom of Information bill, and allow these two measures to be tackled independently by the Committee on Public Information, and ultimately, by the House plenary.

We note the submission to the Committee by the Legislative Counseling Service, Reference and Research Bureau, which opines that a right of reply provision is a proper subject of a separate bill, in conformity with the "one bill, one subject" rule as provided in Article VI, Section 26 (1) of the Constitution. As explained in the opinion, the FOI bill relates to the government duty/mandate to provide access to government records. In contrast, the right of reply is a limitation to freedom of speech or of the press, and would be more properly addressed in a separate bill.

But more than this, we believe that insisting on the integration of a right of reply provision in the FOI bill will have the effect of killing the chances of the FOI bill passing in the 15th Congress.

We say this based on the known still widely-divided positions on Right of Reply.

On one hand, we acknowledge your strong belief that there is a need to give public officials the opportunity to correct errors or to reply to damaging but unfair reportage using information accessed from government, and that this should be made an enforceable right under an FOI law.

On the other hand, we join our colleagues in the media community in their opposition to the right of reply. As stated by the Freedom Fund for Filipino Journalists in a recent statement, legislating a right of reply "would not only undermine the editorial prerogative to decide what to publish, which is at the heart of editorial independence; it would also make unlimited newspaper pages and broadcast airtime available to those who only have to claim to have been denied their right of reply, thus limiting the amount of media space and time available for relevant reports on public issues."

This position finds support in the 1974 US case of Miami Herald v Tornillo, where the US Supreme Court reversed a Florida Supreme Court decision upholding the validity of a Florida right of reply statute. The court stated in part:

[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates. . . . [p258]

Even if a newspaper would face no additional costs to comply with a compulsory access law and would not be forced to forgo publication of news or opinion by the inclusion of a reply, the Florida statute fails to clear the barriers of the First Amendment because of its intrusion into the function of editors. A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. [n24] The choice of material to go into a new paper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public official -- whether fair or unfair -- constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time. Accordingly, the judgment of the Supreme Court of Florida is reversed.

With the positions on the right of reply still very far apart, it will obviously require a long legislative process for differences to be threshed out. In contrast, the FOI bill without a right of reply provision has already gone through a very long legislative history, and undergone painstaking balancing of interests. Attaching to the FOI a right of reply provision at this point "poisons" the otherwise already broad consensus on the FOI bill.

We trust that this not your intent. We recall that in the 14th Congress you were part of the House contingent to the bicameral conference that approved a bicam report on FOI without a right of reply provision.

We do not disregard concerns over the possible abuse of FOI expressed by a number of legislators. We respectfully submit, however, that a right of reply should not be seen as the only balancing measure. We support the approach by the Senate of introducing reasonable safeguards against possible abuse as embodied in a provision adopted in the Senate Committee Report, as follows:

No abuse in the exercise of rights and in the performance of duties under this Act. - Public officials and employees, in the performance of their duties under this Act, as well as citizens in the exercise of their rights under this Act, shall act with justice, give everyone his or her due, and observe honesty and good faith.

Public officials and employees as well as citizens shall endeavor to handle information kept or obtained under this Act with due care, to the end that inaccuracies and distortions are avoided.

Any public official or employee, or citizen who, in the performance of duties or exercise of rights under this Act, willfully or negligently causes loss, damage or injury to another, in a manner that is contrary to law, morals, good customs or public policy, shall compensate the latter for the damage incurred. This is without prejudice to other remedies available to the aggrieved party under any other law for the same acts.

We humbly request for the adoption of a similar approach in the House, even as we stand ready to engage the committee process if the Right of Reply bills of Rep. Karlo Alexei Nograles and Rep. Pedro Romualdo are heard independently.

We hope for your favorable response to our appeal.

Very truly yours,

The Right to Know. Right Now! Coalition

Signed:

Rep. Walden Bello

AKBAYAN Party

House of Representatives

Bishop Broderick Pabillo

Chairman, Catholic Bishops’ Conference of the Philippines - National Secretariat for Social Action-Justice and Peace (CBCP-NASSA)